The Welsh Language Commissioner in Context: Roles, Methods and Relationships

By Diarmait Mac Golla Chríost

This research monograph is the first authoritative work on the office of the Welsh Language Commissioner and the associated Welsh language regulatory and statutory regime. In setting the Commissioner in context – in Wales, the UK and internationally – the work draws upon a rich variety of source material arising from fieldwork conducted in a number of jurisdictions. The research data includes, for example, an extensive series of documents obtained under a number of Freedom of Information applications, in-depth interviews with key actors from pertinent legislatures, governments, regulatory offices, interest groups and civic society. The linguistic coverage of source material includes English and Welsh, as well as, where relevant, Irish, German, Catalan, Spanish, French and Basque, in a publication which is multi-disciplinary in approach, engaging with the scholarly and professional literature in language policy and planning, socio-legal studies and the politics of language.

• Language: English
• Publisher: University of Wales Press
• Release date: Jul 20, 2016
• ISBN: 9781783169061

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The Welsh Language Commissioner in Context

THE WELSH LANGUAGE COMMISSIONER IN CONTEXT

ROLES, METHODS AND RELATIONSHIPS

Diarmait Mac Giolla Chríost

© Diarmait Mac Giolla Chríost, 2016

All rights reserved. No part of this book may be reproduced in any material form (including photocopying or storing it in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication) without the written permission of the copyright owner. Applications for the copyright owner’s written permission to reproduce any part of this publication should be addressed to the University of Wales Press, 10 Columbus Walk, Brigantine Place, Cardiff CF10 4UP.

www.uwp.co.uk

British Library CIP Data

A catalogue record for this book is available from the British Library

ISBN 978-1-78316-904-7

eISBN 978-1-78316-906-1

The right of Diarmait Mac Giolla Chríost to be identified as author of this work has been asserted in accordance with sections 77 and 79 of the Copyright, Designs and Patents Act 1988.

CONTENTS

List of figures

List of key acronyms

Acknowledgements

1Introduction: research aims and methodology

2Independence, accountability and structure

3Language rights and freedom

4Regulatory standards

5Promotion and complaint-handling

6The Crown, Ministers of the Crown and Crown bodies

7Official language

8Conclusions: too complex a regime?

Notes

Bibliography

FIGURES

Figure 1 Location of language complaint-handling and enforcement functions: domestic (UK) and international case studies according to Welsh Policy Paper 3.

Figure 2 Timeline for the Welsh Language Commissioner, Standards and Regulations.

Figure 3 360° accountability of the independent regulator (adapted from House of Lords, Select Committee on the Constitution, 2004a: 20).

Figure 4 The necessary elements of better regulatory outcomes (adapted from OECD, 2013: 4, and OECD, 2014: 22).

Figure 5 Molecular structure of a Welsh language right following Hohfeld, 1919.

Figure 6 States in which the freedom to use or the ‘right to freely use one’s own language’ is recognised by statute.

Figure 7 Comparative schematic for Welsh Language Schemes and Welsh Language Standards as instruments for setting Welsh language regulatory standards.

Figure 8 Welsh Language Board: complaints and statutory investigations based upon data derived from the Welsh Language Board, Annual Reports, 1995–2011.

Figure 9 Irish Language Commissioner: complaints and investigations based upon data derived from the Irish Language Commissioner, Annual Reports, 2004–2012.

Figure 10 Office of the Commissioner of Official Languages, Canada: complaints based upon data derived from OCOL, Annual Reports, 1971–2012.

Figure 11 E-mail from a member of the Welsh Language Society to members of the Welsh Language Society on 17 November 2014.

Figure 12 Examples of Civil Law jurisdictions.

Figure 13 Length of the Welsh language legislation in the context of UK Government primary legislation based upon data derived in part from House of Lords, 2013: 3–4.

Figure 14 Identifying excessively complex legislation (source: Office of the Parliamentary Counsel, 2013: 13).

Figure 15 From policy to Bill – a summary of upstream causes of excessively complex legislation (source: Office of the Parliamentary Counsel, 2013: 25).

Figure 16 Identifying the potential for complexity arising from the main content and purpose of the Measure.

Figure 17 Quantifying the potential for complexity in the current Welsh language regulatory regime: pertinent statute and instruments with statutory force.

Figure 18 Quantifying the potential for complexity in Welsh Language Schemes: volume and length of Schemes.

KEY ACRONYMS

ACKNOWLEDGEMENTS

This work arises from the following research project ‘The office of language commissioner in Wales, Ireland and Canada’, sponsored by the Economic and Social Research Council (ESRC), reference ES/J003093/1. The author would like to recognise two others as involved in aspects of the research relating to this book – Patrick Carlin and Colin H. Williams, both of the School of Welsh, Cardiff University. Carlin in particular was engaged with aspects of the research from which the book generally arises, and as well as commenting upon the draft texts of the book Carlin transcribed the fieldwork interviews. The author is most grateful to the following for their various contributions to various matters pertaining to the research underpinning this book: Linda Cardinal (Ottawa), Fernand de Varennes (Moncton), Rob Dunbar (Edinburgh), Daniel Elmiger (Geneva), Manon George (Cardiff), Dirk Gorter (Basque Country), Cosmo Graham (Leicester), Daniel Greenberg (UK Parliamentary Counsel and Berwin Leighton Paisner), Neil Harris (Cardiff), Meirion Prys Jones (NPLD), Gwion Lewis (Landmark Chambers), Huw Lewis (Aberystwyth), Wilson McLeod (Edinburgh), David Melding AM (National Assembly for Wales), Jacqueline Mowbray (Sydney),¹ Niamh Nic Shuibhne (Edinburgh), Martin Normand (Montréal), Colm Ó Cinneide (UCL), Seán Ó Conaill (Cork), Peadar Ó Flaharta (Dublin City), R. Gwynedd Parry (Swansea), Maite Puigdevall i Serralvo (Open University Catalonia), Vanessa Pupavac (Nottingham), Elin Royles (Aberystwyth), John Walsh (Galway) and staff at Cardiff Civil Justice Centre. The author is also grateful to the audiences of presentations given on the research results at Aberystwyth University in 2015, the National Eisteddfod 2015 (by invitation of Cwmni Iaith) and Calgary University’s annual conference (2015) on Language Policy and Planning, as well as at the international colloquium on Administrative Justice in Wales and Comparative Perspectives hosted by Bangor University, also during 2015. The author alone is responsible for the content. In addition, the author is very grateful to the OECD for permission to use the figure entitled ‘The necessary elements of better regulatory outcomes’, as published in The Governance of Regulators, OECD Best Practice Principles for Regulatory Policy (OECD Publishing, 2014; http://dx.doi.org/10.1787/9789264209015-en), in adapted form, in the shape of Figure 4 of this book. Figure 3, entitled ‘360° accountability of the independent regulator’, adapted from House of Lords Select Committee on the Constitution (2004a: 20); Figure 14, entitled ‘Identifying excessively complex legislation’, from Office of the Parliamentary Counsel (2013: 13); and figure 15, entitled ‘From policy to Bill – a summary of upstream causes of excessively complex legislation’, from Office of the Parliamentary Counsel (2013: 25), are reproduced under Open Government Licence. The author would also like to acknowledge the value of the comments and suggestions noted in the anonymous reviews of the draft version of this book.

1

INTRODUCTION: RESEARCH AIMS AND METHODOLOGY

This English-language research monograph is the first authoritative work on the office of the Welsh Language Commissioner and the associated Welsh language regulatory and statutory regime. The work that is at the heart of the book arises from a major research project entitled ‘The office of language commissioner in Wales, Ireland and Canada’. The project was sponsored by the Economic and Social Research Council (ESRC).¹ The overarching aim of the research underpinning this book was to produce a scholarly output that will contribute to developing a better understanding of the characteristics of (i) a good regulatory environment, (ii) a high-performing regulator, and (iii) regulatory best practice, along with (iv) the means of realising effective regulatory outcomes in relation to offices of Language Commissioner in general and the office of the Welsh Language Commissioner in particular (henceforth, the Commissioner). This, in turn, will inform how the legitimacy of the regulator may be reinforced, so as to secure the effective implementation of public policy while at the same time reinforcing the confidence and trust of both the bodies subject to regulation and also of citizens.²

In setting the Commissioner in context, that is in Wales, the UK and internationally, the work draws upon a rich variety of source material arising from fieldwork conducted in a number of jurisdictions. The methodological approach that underpins the research inherent to this book comprises, in the first place, an authoritative review of the relevant research literature in the fields of language planning and policy, public administration, language law and linguistic rights, regulators and regulatory regimes, and political science. The work is therefore multidisciplinary in approach, engaging with the scholarly and professional literature in language policy and planning, socio-legal studies and the politics of language.

The research data underpinning this text includes a rich vein of material arising from fieldwork conducted in Canada, Ireland and Wales. This comprised a set of fieldnotes taken at a range of public events pertinent to the research questions, along with a series of semi-structured interviews conducted with dozens of key actors from the relevant legislatures, governments, regulatory offices, interest groups and civic society representatives in the various jurisdictions. This body of interviewees included ombudsmen, commissioners, regulators, politicians, civil servants, policy advisors, activists and academic experts. The interviews were transcribed and analysed, using the computer-assisted qualitative data software programme NVivo 10 and its associated tools. In order to make full use of the particular architecture of the programme, the data derived from the fieldwork was organised in a series of text-based and audio files, and a deductive coding structure created from the research issues and questions at the core of the project as a whole was applied to them, using an iterative approach. This coding structure was the foundation of the node and framework matrices through which the data was analysed. The coding exercises included the creation of hierarchical structures of nodes, grouping the codes into code families as co-occurring nodes, as well as creating inductive codes and auto-coding. The data was also explored though matrix coding, key-word and key-phrase text search queries; through creating word-clusters, trees and frequencies in context as well as through generating connection maps based upon group queries. The output of this work was a series of semantic networks, and that enabled the capture of the key themes arising from these particular data, along with the relationships between them. Any material from the fieldwork interviews presented in this book has been wholly anonymised.

The pertinent contemporary and archived professional, technical and grey literature in a number of languages in Wales, as well as Canada, Ireland and elsewhere, provided an alternative source of invaluable data. The linguistic coverage of source material for the purposes of this research includes, in particular, English, French, German, Irish, Spanish and Welsh. This literature included a substantial body of almost one hundred governmental documents arising from a number of Freedom of Information applications in various jurisdictions. The in-depth analysis of this material is wholly unique to this book. In addition to this literature, close attention was paid to the public discourse on the Commissioner and the language issues associated with the office in the broadcast and print news media. The careful analysis of this material has given rise to a number of important insights.

During the course of the project the author wrote a series of detailed internal discussion papers and briefing on a range of key themes, and directed the development and writing of others by Carlin, and these have formed the basis of a several conference and research seminar presentations and other expert academic discussions under the Chatham House Rule leading to the development of this book. The author, together with Carlin, consulted with certain experts based elsewhere in the UK and internationally, both professional and academic, in order to clarify, in an authoritative manner, some very particular aspects of the research. The robustness of the research results, along with the interpretation of them, has been triangulated³ with regards to the following ‘types’:⁴ data, investigator, theory and methodology.

The content of the book is organised into a set of thematic chapters comprised as follows: independence, accountability and organisational form or structure (chapter 2); language rights and freedom (chapter 3); regulatory standards (chapter 4); promotion and complaint-handling (chapter 5); the Crown, Ministers of the Crown and Crown bodies (chapter 6); Welsh as an official language (chapter 7); and, the complexity of the Welsh language regulatory regime (chapter 8). The research results thereby presented in the book offer a range of insights into the scope and function of the office of the Commissioner, of value to developing a better understanding of various important aspects of the scholarly field of language policy and planning. Some of the work will also be of substantial interest to academics working in the areas of administrative justice and of language law, domains united by the unfolding debate on the idea of linguistic justice.⁵ It is likely that some of the results will be of especial interest to policy-makers and practitioners as well as to opinion-formers engaged in language issues.

A number of the research results have immediate relevance to public policy as pertains to the Welsh language and, indeed, may appear to be rather striking to Welsh policy actors. These include, for example, the following conclusions:

the current organisational form, or corporate structure of the office of the Commissioner is not fit for purpose;

there are insufficient checks and balances on the operation of the office of the Commissioner;

ministerial direction is appropriately framed in the Measure and has been appropriately applied;

the current mechanics as regards setting the Commissioner’s budget are appropriate;

there is a conflict of interest between the First Minister and the Welsh Language Tribunal;

the legislative cycle in particular was informed by weak and partial evidence on a number of issues, but in particular on the following matters: statutory declarations of official language status, freedom to use a language, the concept of ‘active offer’, and the independence and accountability of the office of Language Commissioner generally;

distinctions between expert and activist evidence were often substantially blurred;

Common Law jurisdictions can, and indeed do, accommodate official languages;

that the English language is declared an official language under the National Assembly for Wales (Official Languages) Act 2012 is certainly of doubtful vires, as the Assembly has no legal competency with regard to English;

Welsh Language Standards, as per the Measure, can be said to create language rights;

Welsh Language Standards are no less complex than are Welsh Language Schemes;

that both the Commissioner and the Welsh government are responsible for promoting the Welsh language creates duplication;

it is constitutionally unsound for the Commissioner, as a regulator, to be under a duty to critique Welsh government policy;

the operation of complaint-handling function by the Commissioner is a marked improvement upon the historical performance of the Welsh Language Board;

there are clear signs of regulatory activism by the Commissioner and also indications of regulatory capture of the Commissioner by language interest groups. This is manifest in the Commissioner campaigning for changes to Welsh government legislation and in the manipulation of the complaint-handling process by the Commissioner in relation to specific cases regarding the freedom to use Welsh and the Welsh language services of high street banks;

the Commissioner misrepresented the legal implications of the result of the judicial review she initiated against National Savings and Investments;

the relationship of the Crown, Ministers of the Crown and Crown bodies to the Welsh language regulatory regime is overly complex and ambiguous;

there is no single model of commissioners in Wales to which the Commissioner can, or ought to, conform.

Overall, therefore, the evidence is sufficient to conclude that there is good reason to substantially revise aspects of the Welsh language regulatory regime in its totality, including via legislation. These headline results are not, of course, sufficient in and of themselves; for that, it is necessary to work through the detail of each of the issues to hand. In that regard the devil, as ever, is in the detail.

2

INDEPENDENCE, ACCOUNTABILITY AND STRUCTURE

Introduction

The purpose of this chapter is, firstly, to highlight a number of key issues with regard to the independence and accountability of the Welsh Language Commissioner and, secondly, to consider the significance of the structure of the office or, more precisely, the manner of its incorporation or legal personality, whether corporation sole or corporation aggregate. The matter of the independence of the office of the Commissioner was subject to sustained debate, both within the Assembly and in the news media. Despite this scrutiny the evidence shows that the notion of independence was only loosely understood by many of the actors, and this remains the case to a considerable degree. There are important nuances to independence and accountability with regard to a public office of the nature of the Commissioner and these are subject to robust examination here, with regard to both policy and scholarly evidence in the Welsh, the UK and international context, as appropriate. The evidence points to certain significant weaknesses as regards structure and accountability which may usefully inform policy development in the future in this area.

Policy cycle discussion, recommendation and instruction (June 2008–April 2009)

¹

Matters regarding the independence of the office of the Language Commissioner were to the fore at the earliest stage in the policy cycle. A policy paper notes that the independence of the office was among the ‘key aims in the establishment of a Commission/er’, for example: ‘In relation to any regulatory functions, the Commission/er should be, and be seen to be, independent and impartial.’² This policy paper also presents evidence to suggest that in jurisdictions where the language being attended to ‘is in a weaker position overall, or where there is less political commitment, independent Commissioners have been established’ (Figure 1).³ This appears to imply that a Commission, or other corporate body, rather than a Commissioner would be the more appropriate model for the Welsh context.

A substantial part of the policy discussion regarding the independence of the office focused upon the process of selection and appointment. Consideration was given to the impact of the manner of the selection and appointment of the Commissioner in relation to the independence of the office. It was asserted that were the Commissioner to undertake functions of ‘complaints handling, enforcement and general advocacy’, then ‘there would be a strong case for arguing that the appointment should be made by the National Assembly for Wales’,⁴ thereby ensuring the ‘appropriate degree of independence and transparency for the office holder’.⁵ It was also noted there that the Select Committee for Welsh Affairs at Westminster ‘recommended that they [‘Commissioners’, that is the Commissioner for Older People and the Children’s Commissioner] should be more accountable to the National Assembly, to provide the appropriate degree of independence from the Assembly Government’,⁶ adding that ‘The argument for pursuing such an approach is that it would help to ensure that the general public see the Commissioner as a genuinely independent and impartial voice for the Welsh language and Welsh speakers.’⁷

It was also noted that were the Commissioner to undertake functions wider than complaint-handling, enforcement and general advocacy and including, therefore, ‘more general activities in support of the Welsh language’, then, it was contended, ‘the argument for involving the National Assembly is weakened’.⁸ It is then added that ‘Given that part of the Commission’s functions might therefore be the delivery of Assembly Government policies, as well as undertaking statutory functions, the Assembly Government would want close involvement in the appointment process.’⁹ The matter of operational independence is discussed in this paper under the headline of ‘accountability’.¹⁰ Here, it is noted that ‘the exact functions of a Commission or Commissioner will determine the appropriate amount of operational independence’.¹¹ That said, a more precise understanding of these exact functions seems to be based only upon an unspecified difference between general functions on the one hand and more tightly focused functions on the other. In the case of the former, ‘The more general the functions given to a Commissioner/er, the more appropriate it would be for the individual/organisation to be more directly responsible to the Assembly Government’;¹² in the case of the latter, ‘Conversely, if the Commissioner has a relatively narrow focus, then it would be more appropriate to give the Commissioner a large degree of operational independence.’¹³

Figure 1. Location of language complaint-handling and enforcement functions: domestic (UK) and international case studies according to Welsh Policy Paper 3.

The matter of funding was raised in the context of accountability. It was noted that a funding mechanism whereby the Assembly Government ‘directly’ sets the budget of the office ‘might compromise the operational and perceived independence of the Commissioner’,¹⁴ and that, by implication, serious consideration ought to be given to funding the office through the National Assembly from the Consolidated Fund, as with the Auditor General for Wales and the PSOW.¹⁵ At a later stage in the policy cycle, it was determined that the appointment of the Commissioner be a ‘WAG [Welsh Assembly Government] selection process’, while noting also that ‘it would be possible to involve appropriate interest groups in the [appointment] process much in the same way that young people are currently involved in the process to select the Children’s Commissioner.’¹⁶ The reason for the former was that ‘the Commissioner [will] be given a relatively wide remit, including at times pursuing WAG policy.’¹⁷

A number of statements are made in the policy instruction with regard to independence and accountability. For example: ‘It is proposed that the Commissioner would be independent of Government’ and that the Commissioner’s functions ‘could include […] to hold government to account for the exercise of its responsibilities and duties with regard to the language’ and ‘with regard to its language policy’.¹⁸ The creation of the post of Commissioner would ensure that ‘there continues to be a formal voice outside government able to both advise government on matters in relation to the language and provide […] an independent assessment of government policies in support of the language’.¹⁹ It is also noted that ‘Ministers want to establish a robust appointment process to maintain the independence […] of the Commissioner’.²⁰ However, under the headline of ‘accountability’ it is noted that ‘In exceptional circumstances […] the Measure should allow Ministers to issue directions to the Commissioner in relation to how he / she exercises his / her functions.’²¹ In addition, under the heading of ‘funding’ it is noted that ‘The Measure should allow for the Commissioner to be funded by Welsh Ministers to the levels deemed appropriate by Welsh Ministers’ and that ‘the Commissioner should be required to gain approval from Welsh Ministers in determining the number of staff it employs’.²²

Turning now to the matter of the legal personality of the office or, much more loosely speaking, its corporate structure, it is clear from the evidence that during the early stage of the policy cycle there was no assumption ‘whether there should be a Commissioner or a Commission (led by a Commissioner[s])’.²³ In considering possible models, it was noted that the office of Irish Language Commissioner²⁴ ‘depend[s] heavily on the personality of the individual who undertakes the post’.²⁵ It is worth pointing out here that it could easily be argued that the circumstances surrounding the resignation of the first holder of this post amply demonstrate the inherent risk of the inevitable dependence upon personality with regard to the corporate sole model. In an elaboration of this initial discussion, it was noted an alternative approach might be more stable. For example, it was noted that were the Commissioner ‘part of a wider Commission [then] [i]n this scenario, the Commission is less focused on an individual’s personality and is probably more consensual in its approach’.²⁶ In measuring the potential strengths, weaknesses and risks associated with an